Citation NR: 9730383
Decision Date: 09/02/97 Archive Date: 09/11/97
DOCKET NO. 93-12 257 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to service connection for a back disability.
ATTORNEY FOR THE BOARD
Amy Balbach, Associate Counsel
INTRODUCTION
The veteran had verified active duty from December 1959 to
December 1963. He apparently served in the United States Air
Force Reserve from 1963 to 1965 and the New Hampshire
National Guard from 1965 to 1966.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from an August 1992 rating
decision of the Manchester, New Hampshire, Regional Office
(hereinafter RO) of the Department of Veterans Affairs
(hereinafter VA), which denied entitlement to service
connection for a back disorder. In May 1995, and February
1996, the Board remanded the matter for further development.
This matter is again before the Board for appropriate
appellate action.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant asserts that his back disorder was incurred in
service. He contends that his current back disorder is
attributable to a back injury sustained at Loring Air Force
Base, Limestone, Maine, in 1962 or 1963.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence is in equipoise
and supports a grant of service connection for a back
disorder.
FINDING OF FACT
A currently shown back disorder is reasonably demonstrated to
have resulted from an injury incurred in service.
CONCLUSION OF LAW
A back disorder was incurred in active service. 38 U.S.C.A.
§§ 1131, 5107 (West 1991 & Supp. 1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, we find that the appellant’s claim is well
grounded, within the meaning of 38 U.S.C.A. § 5107(a). The
relevant facts have been properly developed, and,
accordingly, the statutory obligation of the Department of
Veterans Affairs (VA) to assist in the development of the
appellant’s claim has been satisfied. 38 U.S.C.A. § 5107(a).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by military
service. 38 U.S.C.A. § 1131. In addition, service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (1996).
Service medical records reveal no treatment, findings, or
diagnosis of a back disorder. An October 1963 service
separation examination revealed complaints of back aches
reportedly beginning in April 1963. The examination report
indicated that the veteran went to the dispensary for such
back problem, as reported by the veteran. An Air Force
enlistment examination dated June 1965, noted a history, as
provided by the veteran, of a back injury sustained at Loring
Air Force Base in 1962. A March 1966 service examination
noted a history, provided by the veteran, of a back injury
incurred at Loring Air Force Base in 1962, for which the
veteran reportedly was refused treatment despite reporting to
the base dispensary. The examination further indicated a
“recurrence of back trouble” in September 1965, and that the
veteran was treated by V.J. Meyers, chiropractor. The
veteran also reported that he received compensation for loss
of work due to a 1965 back injury.
In March 1995, the Board remanded this case to the RO,
requesting, in part, that all available clinical records
pertaining to the veteran be obtained from the Loring Air
Force Base Medical Clinic and/or Hospital. The RO requested
that a search be made by the service department for inpatient
and outpatient reports developed from January 1962 to January
1963. After repeated requests by the RO for records dated
only in 1962 with no records being found, the Board again
remanded this matter in February 1996, in order to also
ensure that a thorough search for records dated in 1963,
which may have been at the Loring Air Force Base Medical
Clinic, was conducted. The RO again attempted to locate and
associate with the claims file, service records dated in 1962
or 1963, which may have shown treatment, or requests
therefor, for the veteran’s alleged back injury.
Of record, are several letters written by the veteran in an
attempt to locate records which would serve to document
treatment while in service by a private chiropractor after
the veteran was allegedly refused treatment at Loring Air
Force Base. Responses to such letters reveal that no such
records have been located and that such records, if they did
exist, have been presumably destroyed.
Private medical records reveal chiropractic treatment from
1965 until approximately 1992. A letter from V. Myers, D.C.,
indicates treatment for a "chronic back condition" from 1965
until 1971, after the veteran was initially seen in 1965 with
complaints of back pain reportedly sustained from heavy
lifting during work. X-rays revealed a misalignment of the
4th lumbar vertebra which was opined to be impinging on the
nerves of the spinal cord causing muscle spasm of the lumbar
area. A letter from F. Pitchforth, D.C., dated in March
1992, reports treatment for a back disorder of the cervical,
thoracic and lumbar spine from 1985 until the present. The
letter further noted that X-rays indicate a "service related
disability" of the back.
VA outpatient treatment records dated in 1992 reveal
treatment for back pain. A history of a back injury in the
1960’s while lifting a hangar door was listed, with chronic,
intermittent lower back pain since being described. VA
treatment records dated from 1993 to 1995, reveal continued
treatment for and evaluation of chronic back pain.
Pursuant to the February 1996 remand, a VA examination was
requested in order that a VA examiner may render a diagnosis
regarding the veteran's current back disability and, after a
careful review of the file, offer an opinion with regard to
the etiology of any noted back disability; specifically,
whether a reasonable basis for attributing any current back
pathology to the veteran's period of service exists.
An April 1996 VA examination revealed a diagnosis of chronic
lumbar strain, probable degenerative disc disease. The
examiner opined that
“[the veteran] does suffer from a chronic
lumbar strain with muscle weakness.
Based on the [veteran’s] statements as
well as the medical record, there appears
to be every indication that the condition
arose out of and in the course of the
injury sustained in 1962.”
Thereafter, the RO requested that the examiner provide a
rationale for his conclusion and the examiner provided the
following statement in May 1996.
“The file was reviewed, as well as any
recent medical records and the only
rationale for attributing his present
back condition to his alleged in-service
back injury were primarily the
[veteran’s] statement and history
provided to me from the medical records
and the patient himself. There was no
history of any intervening traumatic
incident. There is no objective evidence
that would link his condition to the
alleged accident in 1962.”
Finally, in January 1997, in response to another RO request
for clarification as to whether there is a history of an
intervening incident, the examiner provided the following
statement:
“The [veteran] did indeed sustain an
injury to his lower back in October 1965
for which he received some chiropractic
treatment. However, based on the record
and the [veteran’s] statements, this
appears to be a temporary aggravation of
a pre-existing injury which occurred in
1962. However, the [veteran] did indeed
sustain an injury in 1965. Therefore,
there is an intervening traumatic
incident.”
It is the defined and consistently applied policy of the VA
to administer the law under a broad interpretation;
consistent with the facts shown in every case. When, after
careful consideration of all the probative evidence, a
reasonable doubt arises regarding service origin, such doubt
will be resolved in favor of the appellant. 38 C.F.R.
§ 5107(b).
Although treatment is not documented during service for a
back injury, the consistent and specific reporting of a back
injury while stationed at Loring Air Force Base on
examinations at the time of separation from active service,
and on examinations conducted in conjunction with service in
the Air Force Reserves and National Guard immediately
following service, lend credence to the veteran’s allegations
that he initially injured his back in service. Moreover, the
veteran is not shown otherwise than to be a credible
informant. Despite indications in the file of a work-related
injury in 1965, also described as “an intervening traumatic
incident,” the evidence, when viewed in its entirety, is
assessed as reflecting that a reasonable basis exists for a
determination that the evidence is in equipoise as to whether
the veteran initially injured his back in service, with a
chronic residual disability having ensued. Given the initial
opinion rendered by the VA examiner in April 1996 that “there
appears to be every indication that the condition arose out
of and in the course of the injury sustained in 1962”, the
evidence, as developed, is in equipoise. Although subsequent
efforts to further develop, or to amplify, the reasoning or
basis upon which this opinion was premised led to an element
of ambiguity and inconsistency when, considering the
cumulative effect of all the reasoning advanced, it remains,
nevertheless, that the effect of this series of opinions is
to place the evidence in equipoise. The Board notes that
this opinion was rendered based on a review of the records
and the history provided by the veteran therein, which has
been determined, for the reasons stated above, to be
credible.
ORDER
Service connection for a chronic lumbar strain is granted.
JEFF MARTIN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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